State v. Kent

432 P.2d 64, 20 Utah 2d 1, 1967 Utah LEXIS 515

• Court: Utah Supreme Court
• Decided: September 22, 1967
• Docket: 10713
• Status: Published

Opinions

NELSON, District Judge:

The defendant-appellant seeks reversal of his conviction of the crime of unlawful possession of a narcotic drug. He was tried by the district court, sitting without a jury. The appeal is based primarily on the ground, and for the reason, that the trial court erred in its refusal to grant the defendant’s motion to suppress the evidence seized in a search of his premises by the Salt Lake City police. The facts, in connection with the seizure of the key evidence are as follows :

The defendant and his ex-wife were living together in a unit of a Salt Lake City motel. Police officers had been informed, they claim, by a “reliable informer” that Kent had been connected with a series of drug store burglaries in which narcotics had been taken. The police officers approached the manager of the motel to obtain her consent to the use of a hidden vantage point from which they could keep Kent under surveillance. Following the contact with the manager, Officer Patrick, who with other officers had been engaged in the investigation, entered the attic of the motel where, by looking through a ventilator located in the ceiling of the bathroom of the unit in which the defendant was staying, could observe the entire bathroom and part of the bedroom of the unit. 'A curved metal shield prevented anyone in the bathroom from being aware that the occupants were being observed. The attic was dark. During the first day the officer did not see anything illegal taking place, but he did hear Kent’s ex-wife ask him if he wanted two “V’s.” It is claimed this had to do with the amount of narcotic to be used.

On the second day Patrick observed Kent enter the bathroom and use a spoon, eye dropper, pacifier and syringe to make what he considered to be a “fix.” Patrick radioed this information to Officers Waters and Lindsey who were outside the motel. These two officers then entered the motel unit, without a warrant, and without knocking or announcing their presence, and arrested Kent and his ex-wife. Then they searched the apartment occupied by Kent, being directed and aided by Officer Patrick, who, at his vantage point, gave verbal instructions as to where the narcotics were hidden. Thereupon Waters' and- Lindsey found the drug or drugs which would induce narcosis.

Prior to the trial appellant moved the court to suppress all testimony regarding what the Officer Patrick saw and heard in the interior of appellant’s residence, and the physical evidence seized under his direction. The motion was denied. At the conclusion of the hearing the motion was renewed and again denied.

Appellant claims the evidence thus secured resulted from an unlawful invasion of his premises and his privacy all in violation of the Fourth and Fourteenth Amendments to the United States Constitution.

The respondent submits that the conviction of the defendant and the trial court’s denial of his motion to suppress the evidence should be affirmed on the ground there was no physical trespass or unlawful entry into the premises of appellant. The State argues that from the area occupied by Officer Patrick, observation into the unit occupied by defendant was readily available by anyone. The officer did not have to take any affirmative action, such as removing a cover from the vent, but rather merely observed all that was open to observation. It was further argued that it was possible for someone in the bathroom of appellant to readily ascertain he was being observed through the vent.

Counsel for the respondent has failed to adequately answer the questions which he takes for granted. Did Officer Patrick have the right to place himself over the unit occupied by defendant so as to look down into his bathroom and bedroom ? Was the area in which he made his observation a part of the rented unit? If it were, then wasn’t the officer an intruder or trespasser ? Is it conceivable that defendant would be gazing at the ceiling of his bathroom? Did he not have the right to assume he was in a place of seclusion?

The State’s dependence on the purported lack of a trespass, according to local property law, as a determinative factor in whether there has been an intrusion into a constitutionally protected area is clearly refuted by Silverman v. United States.¹ It is difficult to distinguish between the vent located in the bathroom in the instant case and the heating system in Silverman which was described as an integral part of the premises occupied by petitioners. The court stated:

Here, by contrast, the officers overheard the petitioners’ conversation only by usurping part of the petitioners’ house or office — a heating system which was an integral part of the premises occupied by the petitioners, a usurpation that was effected without their knowledge and without their consent. In these circumstances we need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls. Inherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law. [Citations omitted.]

The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. [Citations omitted.]

* * * But decision here does not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area. * * * [Emphasis mine.]

The California courts have adopted the principle that although a trespass is a factor to be considered in determining the reasonableness of a search, a minor or technical trespass not involving physical entry into a building does not derogate from the otherwise reasonable nature of the search. Rather it is the degree of privacy which defendant enjoyed in the place involved that is the important factor in determining the reasonableness of the search and essentially that determination must depend upon the facts and circumstances of the particular case.²

Having pleaded a violation of both the Fourth and Fourteenth Amendments, we must determine if the Fourth Amendment applies to the states.

If there was such a query before the adoption of the Fourteenth Amendment it has now been definitely settled that the provisions of the Fourth Amendment do apply with equal force to the states and in particular to questions of search and seizure.³

It has also been clearly established by a number of Supreme Court decisions that leased and rented premises would come under the protection of the Fourth Amendment.⁴ By the same decisions and others,⁵ it now appears to be settled that, in the absence of abandonment, expiration of lease, or other extraordinary circumstances, such as to suppress a riot, save life or property in case of fire, or to prevent escape of a fleeing suspect or to prevent the destruction of evidence, the consent of a landlord or hotel or motel manager would not be sufficient to justify an officer to make a search of tenant’s premises without a warrant. A landlord has a duty, as well as a vital interest in cooperating with officers so as to remove himself of suspicion and the right to promptly exculpate himself by allowing a search, but the permission of an innkeeper will not constitute an ersatz in place of a warrant. It is not so much a matter of the officer proceeding in a manner approved by a court, as it is to operate in a way required by law.

The conditions and circumstances of the present case would indicate no emergency was present which would justify the search and seizure effected by the police. If, as the police suspected, the defendant was guilty of stealing narcotics, he would most probably intend to keep them for his own use or for sale to others. In either case he would not be likely to destroy the narcotics except as a last resort to prevent them from being found. Since the defendant apparently had no suspicion that he was being watched, the emergency had not arisen. Also, if he had attempted to leave, the police would have been fully aware of his attempt, and would have been able to stop him. Therefore, no emergency situation existed which justified the police in their search and seizure without a warrant.

There can be no denial that the major duty of the police is to diligently and fearlessly investigate crime and enforce the law. It is their task to apprehend the criminal, and to aid in the determination of his guilt. This is required whether the offense be a misdemeanor of little concern or a felony of great importance and far-reaching effect. It would be inclusive of a charge of jaywalking or of murder. Certainly the apprehension of a miscreant in possession of narcotics, and particularly of one engaged in its sale, demands vigorous and continuing inquiry by the police. No one is more pathetic than a drug addict. No criminal is more venal or despicable than the one who seeks a state of affluence by selling the poison to the degenerate, who, bereft of hope, makes alternate flights into abnormal tensions of euphoria, ecstasy and frenzy, often resulting in psychosis. Yet in ferreting out the iniquitous malefactor responsible for such nefarious trade, the policeman is restricted, prevented from ramifying his search beyond the limitations set by law. The interstice may be narrow between what he may do and what he cannot do. He should avoid furtive procedures and surreptitious methods.

There are those who say in such cases as this that the end would justify the means. Surely where an officer would be permitted to exceed the posted speed limit to overtake a speeder, he should be able to take such action as he would consider necessary to arrest one violating the narcotic act. It is said too much emphasis is placed on protecting the rights of the wrongdoer, and too little attention given to protecting society. To this we cannot subscribe in total. There is an area, not forbidden, in which the officer may exceed granted authority in the performance of duty, but regardless of how desirable the end may be, there cannot be a substantial variance, and especially is this true if the deviation is expressly forbidden by constitutional provision or legislative enactment.

We have held that the processes of law have only one legitimate objective, to seek out the truth and to do justice.⁶ The court is not a place affording the opportunity to learned counsel to display their histrionic talents, nor to enact a drama, or comedy. It is a place to determine the truth — the facts of a particular case, to review the law and act accordingly, all that justice may prevail. There should be no dismissal of a charge or reversal of judgment unless the facts and the law demand such ruling. This requires, however, not only the recognition and preservation of substantive rights, hut also a strict adherence to the requirements of adjective law, particularly and especially if the method of procedure has been made mandatory by constitutional provision or legislative act.

Regardless of how beneficial or desirable to society a certain ultimate may be, the court must have the judicial fortitude and integrity, as well as the moral courage, regardless of invidious attacks, to interpret and apply the law as it is. He must act without hope of accolade or fear of obloquy. This is true even though the court may think the law should be different. The court is not a policy-making body. The question is not one of resolving a balance of the rights of the individual and the rights of the group. They are complementary; both having a common conclusion, the good of each and all. In some respects the individual is supreme. Under certain circumstances, the rights of the individual prevail over group authority and group rights. Thus, in the detection of the criminal, as desirable as his apprehension might be, the pursuit must be by due process of law.

The significant point raised by defendant is his alleged violation of his right to privacy as guaranteed by the Fourth Amendment.

There are students of the law who maintain that privacy developed as a parasite upon earlier well-established rights. Thus, some courts have refused to consider the claim unless it has been tied in with some other fundamental right, such as the right to resist trespass.

In England, as well as in this country, notwithstanding court decision to the contrary, respectable scholarly opinion has contended there does, or at all events, there should exist a common law of privacy independent of all other phases or aspects of the law. These students of history and jurisprudence hold it was the common law right of man to have privacy in his home; that it was and is a right which is an indispensable essential of civilization. They claim it was firmly established as one of the bright features of the Anglo-Saxon contributions to human progress. It belonged to all men.⁷

We accept the latter point of view and further hold the right of privacy gives added emphasis to the dignity of man. It rests on the principle that not only man but the sovereign must obey the law. 'Surely this principle has been recognized since the days of Henry II, and later in the Magna Charta exacted from his son, King John, June 15, 1215. Although often suppressed, it most likely existed even prior to the reign of the Plantagenets as found in the customs and rules of the Angles, Saxons and Jutes.

In any event, the right to personal privacy and dignity is protected and guaranteed against unwarranted intrusions by the State by the Constitution of the United States and has been upheld by numerous court decisions.⁸ Where this right has not been respected the most terrifying practices have been used.⁹

We readily recall the action in other lands where political forces, acting in the guise of policemen have arrested their victims at all hours, without warrants. Nor have we forgotten the sequence thereto — abolition of habeas corpus, and the liquidation and banishment of those arrested all without judicial review.

We feel Officer Patrick’s bathroom observations constituted an unlawful invasion of defendant’s privacy.¹⁰ We are of the opinion the defendant, in renting the motel unit, obtained the exclusive right to use it, which included the right to privacy. It is true this right may be forfeited by illegal use of the property, but such unlawful utilization must first be established by legal means.¹¹

A right is that to which one has a just claim. A resident of this land has a just claim, God given, or innate as a human being to life, liberty and the pursuit of happiness, and as a corresponding and accompanying right, the right to privacy in his own home.

Privacy means a state apart from company or observation; it means a place of seclusion and secrecy.

Home is a dwelling place; it is an anchor; it is a place of retreat and security; an abiding place of loved ones and their affection. It is a protected place — a sanctuary.¹²

The defendant had the right to maintain his place of abode, though it was a room in a motel, as an annulus, free from outside intrusion and observation; a place inviolate where he could repose in security.

It is true there is a difference between a casual or accidental observation and an intentional invasion of property. Intrusion upon private property may constitute trespass, yet not infrequently the gravamen of the harm is the injury to privacy.¹³ There is harm in being seen in privacy under unfavorable circumstances.

It is impossible for us to determine whether Officer Lindsey or either of the other officers had sufficient evidence to link the defendant to a series of burglaries. If this were actually the case, then this officer should have secured a search warrant or a warrant for arrest of the defendant based upon the information he had received.

The reason for requiring the police to obtain a warrant is that it requires the police to subject their evidence or information to the scrutinizing of an objective magistrate, who then determines, upon the information available whether a warrant should issue or not. In this way a person’s constitutional rights are maintained, and the American system of jurisprudence preserved.

We conclude the evidence obtained by the police in this case was obtained illegally by means of an exploratory search which violated the defendant’s constitutional right of privacy. Therefore, the evidence should not have been admitted, and defendant’s motion to suppress the evidence should have been granted.

For the reasons stated the conviction oí the defendant is reversed.

CALLISTER and TUCKETT, JJ., concur.

1 . 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961).

2 . People v. Willard, Cal.App., 47 Cal.Rptr. 734, 739, 743 (1966).

3 . Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

4 . Louden v. Utah, 379 U.S. 1, 85 S.Ct. 87, 13 L.Ed.2d 23; Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed. 828; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153.

5 . Drummond v. United States, 8 Cir., 350 F.2d 983.

6 . State v. Seymour, 18 Utah 2d 153, 417 P.2d 655.

7 . District of Columbia v. Little, 85 U.S.App.D.C. 242, 178 F.2d 13, 16, 13 A.L.R.2d

8 . Schmerber v. State of California, 384 U. S. 757, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966); Griswold v. State of Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965), where the court stated : “The present case, then concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. * * * ”

9 . Brock v. United States, 5 Cir., 223 F.2d 681; People of State of California v. Hurst, 9 Cir., 325 F.2d 891.

10 . Bielicki v. Superior Court of Los Angeles, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288 (1962); Britt v. Superior Court of Santa Clara County, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817 (1962).

11 . People v. Regaldo, 224 Cal.App.2d 586, 36 Cal.Rptr. 795 (1964); People v. Willard, 47 Cal.Rptr. 734, 738 (1966), where the court stated: “ * * * As we observed in People v. Norton, supra, 209 Cal.App.2d 173, 175-176, 25 Cal.Rptr. 676, 677-678, ‘the factual essence in Bielicki was the clandestine observation by the police of a place which by its very physical appointments provided privacy to its occupant. * * * Such surveillance therefore, because of the character of the place to which it was directed, of necessity invaded the occupants’ constitutionally guaranteed right of privacy. The activities observed by the police in Bielicki were such that no other member of the public could have seen them, since they were carried on in toilet booths fully-enclosed by three walls and a door.’ ”

12 . United States v. Greenhead, Inc., D.C., 256 F.Supp. 890.

13 . Silverman v. United States, see note 1, supra.